Must-read Mark Bowden column on the vicious back-stabbing of Tracy McIntosh ’75.

The defense team for former University of Pennsylvania professor Tracy McIntosh was more than a little surprised on March 3, 2005, when assistant Philadelphia district attorney Gina Smith set up a PowerPoint display in court and launched into an impassioned plea for McIntosh to be sentenced to jail.

Months earlier, McIntosh had reached a settlement with Smith in a private session with Common Pleas Court Judge Rayford Means. The professor, who originally had been charged with drugging and raping a graduate student, agreed to plead no contest to charges of sexual assault, in a deal that his attorneys claim was proposed by Smith. The deal, they say, came with a promise of no jail time.

If that was true, then Smith’s argument in court was all performance, and while veteran defense lawyers Tom Bergstrom and Art Donato considered the theater over the top, they were prepared to accept it. So what if Smith put on a show for the family of the victim and press? They were pleased with the deal and knew that at the end of the day, the judge would not send their client to jail.

And he did not. When Means sentenced McIntosh to house arrest and probation, it set off a firestorm of protest. The judge was characterized as displaying “wild insensitivity” by Daily News columnist Jill Porter and roundly condemned, not just in this city but also around the country. He became overnight a kind of poster boy for the idea that powerful men in this society protect other powerful men who prey on women. The Pennsylvania Superior Court overturned the sentence and has ordered up a new one.

So this story, which one of the lawyers involved called “the case that will not die,” has new legs. At the resentencing hearing, from which Means has recused himself, he had expected to testify along with Bergstrom and Donato that the “wildly insensitive” sentence was actually proposed by the D.A.’s Office. The prosecutor’s office denies it, and Smith told me she was looking forward to telling her side of the story at the hearing. She won’t get her chance, nor will the judge and the defense lawyers, because on Friday, Common Pleas Court Judge Pamela Pryor Dembe slammed the door on a hearing to unearth the truth.

Like all lovers of a juicy official spectacle, I am disappointed. If these trains had been allowed to proceed down these rails, someone was going to have to either change his or her story, or lie very publicly under oath.

I believe the deal was made, and that Dembe’s decision will spare the D.A.’s Office the embarrassment of having to admit it. The real loser, other than McIntosh, is Judge Means, whose reputation has been smeared in a particularly cynical prosecutorial about-face.

This was a very high-profile case. McIntosh was a respected Ivy League medical researcher, and the charges were sensational. The victim, a prospective graduate student, was the niece of one of McIntosh’s closest friends. If true, it was not just a crime; it was an appalling betrayal of friendship, power and trust. Other women had come forward with allegations of sexual misconduct, which were made public. He had lost his job. In the media, at least, McIntosh was a serial predator facing up to 11 years in prison and deserving every day of it.

McIntosh’s attorneys, on the other hand, felt there was little behind such assumptions. They had elected to go to trial and challenge the charges, and they were in the process of picking a jury that day when, they say, Smith approached them about making a plea. Both Bergstrom and Donato were surprised by the offer, given the tenacious public posture of the D.A.’s Office in the case. But both say that Smith suggested that a trial would not be in either party’s interest and suggested the no-contest plea.

Donato says he balked. Even with the no-contest plea, the sentencing guidelines called for more than two years’ imprisonment.

“We’re ready to try this case,” he says he told Smith. “My client isn’t going to plead anything that might lead to jail time.”

He said Smith argued that if they entered the plea, Means would ignore the guidelines and not put McIntosh in jail for a day. When he said he could not take her word for it, she led both him and Bergstrom into a private session with the judge. Both Bergstrom and Donato, highly respected criminal defense lawyers (Bergstrom is a former federal prosecutor), say that Means confirmed the terms of the deal, which is why they agreed to it.

They all knew that any settlement that kept McIntosh out of prison altogether was going to be met with disbelief and strong condemnation. When Smith told the judge that she intended to argue for a harsh sentence in court, Means understood the hypocritical game. In the meeting, according to Bergstrom and Donato, he asked Smith, “So you want me to take the heat?”

And so he did. Carol Tracy, executive director of the Women’s Law Project, told a national TV interviewer that the sentence was “outrageous.” She said, “It sends a terrible message both about the administration of justice, but also about whether women are going to come forward if the person who has assaulted them is a person of power and position and privilege.”

All of this the defense was prepared to accept. Appearances need to be maintained, after all. What stunned them was when Smith’s boss, District Attorney Lynne M. Abraham, publicly denounced the sentence – “a slap in the face for victims and it doesn’t protect the public” – and then appealed it to the Superior Court.

“It was a stab in the back,” Bergstrom said. “To condemn and appeal the sentence that they agreed to beforehand – that they, in fact, proposed? I have seen many things in my years of law practice, but this beats all. There is no conceivable way that Art and I and the judge misunderstood the terms of the deal beforehand.”

Bergstrom said he made several efforts to speak directly with Abraham about her appeal, but she refused. “I don’t think Lynne had the foggiest idea that her own assistant had made that deal,” he said. “If she did, I suspect she wouldn’t have been happy about it.” He said he did not raise the issue of the agreement in answer to Abraham’s appeal because “there was no record of it. The Superior Court would not have even considered our claim without a record.”

Without a hearing on the matter, the lawyers and the judge will not get a chance to publicly call Smith on what they see as a stark betrayal. Means has never tried to defend himself. He has maintained a judicious, aloof posture throughout, and did not return my call last week.

“I feel bad for Judge Means,” said Joel Trigiani, who is now representing McIntosh since both Bergstrom and Donato will be witnesses at the resentencing hearing. “What happened to him is not right. Our system is based on the principle that if you make a deal, you honor it. I mean, they just hung the judge out to dry on this one. I’ve never seen anything like it.”

This is a sad, sad story all around. Previous coverage here. My comments are the same as last year.

By the way, what are the odds that McIntosh is innocent, that the young women and he engaged in consensual intercourse and that, only several days after the fact, did she convince herself that a “rape” had occurred? I think that the odds are low, that if the EphBlog community had access to a videotape we would vote to convict, if a trial were held.

But the odds are not zero. There is some possibility that McIntosh is innocent, at least of this crime. (By all accounts, he was a man who, like former President Clinton, sought intimate female companionship outside of his marriage, occasionally among women who worked for/with him. That is not a crime, however.)

And, if McIntosh is innocent, his plight is tragic. His life has been ruined, his career shattered, his finances exhausted. Given the vagaries of a jury, given the pressure that he may have felt to spare his family the trauma of a trial, pleading guilty to sexual assault, rather than run the risk of a rape conviction, might have seemed the sensible course. Perhaps his lawyer so advised him. Perhaps his lawyer predicted in 2004 that, whatever the punishment, his ordeal would be over by 2007.

But the justice system is not done with McIntosh yet. When will it ever be?

Still a good question.

Note also this comment from a previous thread.

Amazingly, I’d somehow missed the whole story about Tracy. It hit me hard this morning. I’ve spent the morning trying to understand the story (many of the links no longer work so I’m still fuzzy about it).

I noticed that no one on EphBlog had a kind word about Tracy, and that there was speculation about how he must have behaved “back in the day.”

Tracy was one of my classmates. I did not know him very well, but I remember him fondly and I never heard of his taking advantage of anyone while we were at Williams.

Tracy was an extremely fine soccer player. Over the years, I was touched by his profound, and longstanding, gratitude for having been admitted to Williams, and for his education there. He was quite candid about having been shocked that he was admitted, as his scores were very low (he once told me what they were and, even taking into account the subsequent changes in the test, they were, indeed, extremely low). I believe that he came from a single-parent household back when that was unusual for Williams students. I have long had the sense that he had some sort of a serious (and probably unaddressed) learning disability. He may have been of the Ford Foundation “ten-percenters” (or were they “five-percenters”? – I’m getting old), someone who had lower stats and other credentials than most of the other admitted students but who, in the eyes of the Admission Committee, showed special promise. (Cynically, one could say that his promise was his soccer skill but I genuinely believe that it was for other promise that he was admitted.) And, indeed, he certainly lived up to the Admission Committee’s faith in him, going on to become a doctor and one who changed lives with his work on brain damage. Someone for Williams to be extremely proud of …

… until his fall from grace. I can’t find all the details but, based on what I can find, what Tracy did was certainly extremely reprehensible. I noted in the stories that alcohol and marijuana were involved. I thought that the pieces of the story I could find were consistent with having long-term substance abuse problems, and I was curious why there was no mention of rehabilitation (or perhaps he did not plead having a substance abuse problem out of fear of losing his medical license; he did plead it and it just wasn’t made public; or he did plead it and it wasn’t in the parts of the story that I could find). That wouldn’t have made him less guilty, but perhaps it would have somewhat changed people’s thinking about him as a whole person.

In any case, reprehensible (and inexcusable) as Tracy’s behavior several years ago was, please let’s not lose sight of the fact that Tracy is more than “predator McIntosh ’75” or “sexual assaultist McIntosh ’75” as he has repeatedly been referred to in the EphBlog entries I’ve been reading. He has been a loyal and grateful Eph, a person who succeeded despite the odds, a doctor who has made extremely valuable contributions in a heartbreaking area, and (until his fall from grace) the apparent epitome of an Eph success story.

I grieve for the woman Tracy hurt so badly and for her family(and I am saddened at the thought that the sentencing controversy has probably made their lives even more difficult). I grieve for the bright, warm family Tracy introduced me to – with such obvious pride in them – at the ’00 reunion. But I also grieve for Tracy and hope that he will be able to get beyond this and that it won’t continue to overshadow completely all the good he has done over the years.

There are no winners here.

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